State v. Burns , 1991 Mo. App. LEXIS 430 ( 1991 )

PER CURIAM.

Defendant appeals a life sentence. The case must be retried because the trial court erred when it misdirected the jury by an oral instruction given after the jury began deliberations. The instruction may have coerced a verdict. There is no basis to determine that it did not coerce a verdict.

The trial involved two charges. Count I, robbery first degree, “in that on September 7, 1985 in the County of Jefferson, State of Missouri, the defendant forcibly stole U.S. Currency in the possession of Henry Cullen, and in the course thereof defendant caused serious physical injury to Henry Cullen.” Section 569.020 RSMo 1988. Count II, assault first degree “in that on September 7, 1985 in the County of Jefferson, State of Missouri, the defendant knowingly caused serious physical injury to Henry Cullen by striking his head with a glass object.” Section 565.050 RSMo 1986. Additional counts involving charges from the same event were not tried.

Henry Cullen and his wife testified defendant and an unknown male invaded their house trailer on September 7, 1985. Cullen and his wife knew defendant. Either defendant or his companion struck Henry Cullen while he slept. The blow broke Cullen’s jaw. They also testified defendant took money from Cullen’s wallet before they left. Defendant and two friends testified in support of an alibi defense. They told the jury defendant was in St. Louis County at the time just before the alleged robbery and assault occurred.

The operative facts on the coercion of verdict issue are as follows:

1. At 2:05 p.m. the jury retired to consider a verdict on Count I, robbery in the first degree and Count II, assault in the first degree.

2. At 5:40 p.m. the court received a note from the jury which said “[d]o we have a time limit to reach a verdict? If so, what is the limit?”

3. The court announced an intention to read MAI-CR(3d) 312.10, the Allen-type hammer instruction to the jury. The state objected because the communication from the jury did not indicate that they were deadlocked. Defendant did not object.

4. At 5:46 p.m. the court read MAI-CR(3d) 312.10 to the jury. It also asked whether “further deliberations would be helpful in this situation?” The response, “[ijt’s possible. We are close.” The jury resumed deliberations.

5. At 7:17 p.m. the jury returned into open court. Immediately thereafter, without consultation with counsel, the court said “Ladies and gentlemen of the jury, as you were instructed, you have to return a verdict on each count. You will go back to the jury room and complete your deliberations on Count II.” (The emphasis intended to highlight the issue for decision).

6. At 7:27 p.m. the jury returned.

The jury found defendant not guilty on the charge of robbery first degree. It subsequently found defendant guilty on the charge of assault in the first degree. In defendant’s motion for new trial he contends:

[tjhere existed inconsistent verdicts in said cause as reported by the jury in that after some five hours and 12 minutes, the jury indicated a verdict but that there was only a verdict rendered as to Count I. The court instructed the jury to return for deliberations because Count II was out of place and out of order and that the jury then returned 10 minutes later with a verdict of not guilty on Count I and guilty as to Count II thus resulting in wholly inconsistent verdicts in this cause.

This claim of error is not the same as the decisive claim of error before this court. It is reviewable only as a matter of plain error.

On appeal defendant contends:

The trial court erred in instructing the jury that it was required to reach a verdict on each count of the information because that instruction coerced a guilty verdict under Count II, in that (1) the instruction improperly embellished the “hammer” instruction previously administered by the trial court and (2) the instruction incorrectly directed the jury without qualification to deliberate until a verdict had been reached under Count II.

The question of whether a verdict was coerced is a matter of plain error. By definition coercion of a verdict is a matter affecting substantial rights and involves issues of manifest injustice or miscarriage of justice. Rule 30.20.

Defendant did not furnish this court with a copy of all instructions submitted to the jury. However, where two counts were tried the court certainly gave the jury MAI-CR(3d) 304.12 which instructs the jury “should” return a separate verdict on each count. We know the court gave MAI-CR(3d) 312.10 which instructed the jury “it is desirable that there be a verdict in every case” a juror should respect opinions of other jurors and “endeavor to bring the deliberations of the whole jury to an agreement upon a verdict.” However, that instruction also contains words of caution intended to minimize the possibility a juror will be coerced. It also provides “a juror should not agree to a verdict that violates the instructions of the court, nor should a juror agree to a verdict of guilty unless he is convinced of the defendant’s guilt beyond a reasonable doubt.”

The subject matter of the oral statement made by the court involved the same matters covered by MAI-CR(3d) 304.12 and MAI-CR(3d) 312.10, the desirability of a separate verdict on all counts and the proper manner of deliberations to reach a unanimous verdict. However, the oral instruction conflicts with both approved MAI-CR instructions. It contains a statement of fact which is untrue and a statement of law in derogation of the Allen-type hammer instruction. Contrary to the oral instruction, the court did not previously instruct the jury it had to reach a verdict on each count. As a matter of law the jury did not have to reach a verdict on each count. The oral instruction was a positive misdirection to the jury.

The court spontaneously acted without consulting counsel for either side. It spoke to the jury before any objection could be made by either party. This procedure violates MAI-CR(3d) 312.10, notes on use 3. The oral instruction was the first communication from the court to the jury after it read MAI-CR(3d) 312.10 to the jury. The only intervening events were additional deliberations. The approved instruction contains a caution not contained in the oral instruction. The cautionary language “ ‘is the crux of the instruction’ and is consistent with the basic duty of a juror and the fundamental concept of a fair trial.” State v. Broadux, 618 S.W.2d 649, 652 (Mo. banc 1981) (quoting State v. Hayes, 563 S.W.2d 11, 12 (Mo. banc 1978)). In Hayes the court reversed a judgment because the trial court omitted this caveat from its instruction to the jury. A generally approved Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528, Hammer Instruction may be impermissibly coercive if it appears that, under the circumstances, the trial court was “virtually directing that a verdict be reached.” State v. McNail, 767 S.W.2d 84, 86 (Mo.App.1989). The oral instruction ordered the jury to reach a verdict.

Coercion of a guilty verdict constitutes error. Hayes, 563 S.W.2d at 12; McNail, 767 S.W.2d at 86. A reversal is required if it is conceivable the challenged instruction coerced the jury into returning a verdict and nothing in the record is available to find otherwise. See State v. Raspberry, 452 S.W.2d 169, 175 (Mo.1970). The rights of both parties to a fair trial and defendant’s right to due process cannot be served if a verdict is coerced, nor can these rights be protected if it is conceivable the verdict was coerced. A coerced guilty verdict is prejudicial.

Por a variety of reasons, it is conceivable the verdict on Count II was coerced. First, the verdict on Count II appears to be inconsistent with the verdict on Count I. The verdict on Count I represents a finding defendant was not guilty of causing Henry Cullen serious physical injury and of forcibly stealing Cullen’s money. The guilty verdict on Count II represents a finding defendant caused the serious physical injury by the same act rejected by the verdict of not guilty. The state’s evidence on both charges consisted of the testimony of Henry Cullen and his wife without the support of any other evidence. Second, the verdict on Count II was delivered so quickly after the oral instruction, which followed hours of deliberations before and after the approved hammer instruction. Third, the misstatement of fact and law contained in the oral instruction is presumptively error. Rule 28.02(f). For that reason, Rule 28.-02(c) directs the court to use approved MAI-CR instructions “to the exclusion of any other on the same subject.” Fourth, the use of MAI-CR(3d) 312.10 is strictly limited to submission in writing. Notes on use 4 of that instruction are explicit and the requirement is absolute. State v. Wells, 639 S.W.2d 563, 568 (Mo. banc 1982).

Reversed and remanded.